Victorian Surrogacy Regulations Update
If you know me at all, you know how much I enjoy a bit of surrogacy law reform. And this one is particularly satisfying, because the previous provisions were so ridiculously unfair that it beggared belief that anyone had ever thought they were a good idea.
The Victorian Assisted Reproductive Treatment Regulations (2009) provided that surrogate’s prescribed expenses only included medical, travel and legal expenses. That meant that there was no provision for intended parents to cover the surrogate’s lost income, maternity clothing, allied health services or other costs. See what I mean? Ridiculous.
If you are new to surrogacy, you can read about how to find a surrogate, or how to become a surrogate yourself. You can also download the free Surrogacy Handbook which explains the processes and options.
The unintended consequences of the Regulations meant that women who might have considered becoming surrogates for Victorian intended parents were turned off by the risk they would be out of pocket. And for those teams that did proceed, there were faced with one of two options – the surrogate and her partner would be out of pocket, or the intended parents would cover expenses such as lost income, at the risk that the surrogate would face prosecution for receiving such payments. You can imagine how difficult it is, as a lawyer and a surrogate, to have to advise parties about this restriction and the impact on their arrangement.
So, with that in mind, it made me squeal a bit when I discovered that the Regulations were to due to be reviewed, and that the people charged with reviewing them were interested specifically in changing the Regulations with regard to surrogates’ expenses.
Here’s the new Assisted Reproductive Regulations 2019, (live from 13 December 2019) which provides for a surrogate to be reimbursed for the following expenses:
- medical costs for the birth mother or a child born as a result of a surrogacy arrangement where these are not payable by Medicare or private health insurance
- premium payable for health, disability or life insurance that would not otherwise have been obtained
- counselling expenses
- reasonable legal costs for the birth mother and their partner (if any)
- lost earnings because of leave taken—
- for a period of not more than two months during which a birth has happened or was expected to happen; or
- for any other period during which the surrogate was unable to work on medical grounds as a result of the surrogacy
- other out-of-pocket expenses including travel, accommodation and childcare.
What the new Regulations do not provide for is the surrogate’s partner’s out of pocket expenses – but the legislation doesn’t contemplate that anyone other than the surrogate could incur expenses anyway. And whilst surrogates who are contractors or self-employed should be covered for their lost income, it can be difficult for the parties to work out what her loss was if her work is not easily valued. Teams need to seek specific legal advice about their circumstances to manage these issues.
The Age covered this story in this article, in which I was interviewed.
Sarah has published a book, More Than Just a Baby: A Guide to Surrogacy for Intended Parents and Surrogates, the only guide to surrogacy in Australia.